Kenneth Foster

http://media.houston.indymedia.org/uploads/2007/07/foster_1.jpg 
copié 24.8.2007
 

Texas Gov. Rick Perry
granted a rare stay of execution to a Houston woman just hours before
she was scheduled to die on December 1, 2004 by lethal injection
for the 1987 murder of her husband and two children.

Frances Newton has protested her innocence
since she was charged in the shooting deaths
of her husband Adrian, 23, son Alton, 7, and daughter Farrah, 21 months,
in what prosecutors said was
an attempt to collect $100,000 from life insurance policies on her family.

Newton is seen in this undated prison photo.

Photo by TDCJ/Reuters.

Governor Stays Texas Woman's Wednesday Execution        R

Wed Dec 1, 2004 06:35 PM ET
http://www.reuters.com/newsArticle.jhtml;jsessionid=
L0RJGJTLY4NXKCRBAEKSFFA?type=domesticNews&storyID=6971566

death penalty
http://www.guardian.co.uk/world/interactive/2009/nov/15/death-penalty-us-states
http://www.guardian.co.uk/usa/story/0,12271,1688197,00.html
http://cbs5.com/deathrow
http://www.usatoday.com/news/nation/2005-12-20-williams_x.htm
http://www.guardian.co.uk/elsewhere/journalist/story/0,7792,1669246,00.html
http://www.guardian.co.uk/frontpage/story/0,,1666899,00.html
http://www.guardian.co.uk/usa/story/0,12271,1666063,00.html
http://www.guardian.co.uk/usa/story/0,12271,1666024,00.html
http://www.guardian.co.uk/usa/story/0,12271,1665923,00.html
http://www.guardian.co.uk/usa/story/0,12271,1602824,00.html
http://www.guardian.co.uk/usa/story/0,12271,1635823,00.html
http://www.guardian.co.uk/usa/story/0,12271,1657476,00.html
http://www.savetookie.org/
http://www.chron.com/content/chronicle/special/01/penalty/index.html
http://www.nytimes.com/2005/01/18/national/18death.html?oref=login
http://www.deathpenaltyinfo.org/
http://www.hrw.org/campaigns/deathpenalty/
http://www.amnestyusa.org/abolish/

capital punishment
http://www.guardian.co.uk/world/2009/nov/15/texas-death-penalty-execution-us
http://topics.nytimes.com/top/reference/timestopics/subjects/c/capital_punishment/index.html

execution
http://www.guardian.co.uk/world/2009/nov/15/texas-death-row-danielle-simpson

execution appeals process
http://www.usatoday.com/news/nation/2007-03-01-deathsentences_x.htm

impose the ultimate punishment on...
http://www.usatoday.com/news/nation/2006-10-23-richmond-slayings_x.htm

cruel
http://www.guardian.co.uk/usa/story/0,,1878025,00.html

Mumia Abu-Jamal
http://www.guardian.co.uk/usa/story/0,,2198557,00.html

death penalty > South Dakota > The execution of Elijah Page        2007
http://www.rapidcityjournal.com/news/page_execution/

Cameron Todd Willingham
http://camerontoddwillingham.com/
http://www.nytimes.com/2009/10/02/us/02texas.html
http://www.nytimes.com/2009/09/01/opinion/01herbert.html
http://www.usatoday.com/news/nation/2009-08-26-faulty-fire-investigation_N.htm
http://www.nytimes.com/2006/05/03/us/03execute.html
http://www.newyorker.com/reporting/2009/09/07/090907fa_fact_grann

http://www.tdcj.state.tx.us/statistics/deathrow/drowlist/fosterk.jpg
copié 24.8.2007

death penalty > Texas > Law of parties

Section 7.02 of the Texas Penal Code outlines the following:

A person is criminally responsible for an offense committed by the conduct of another if
"acting with intent to promote or assist the commission of the offense he solicits,
encourages, directs, aids or attempts to aid the other persons to commit the offense" or
"If, in the attempt to carry out a conspiracy to commit one felony,
another felony is committed by one of the conspirators,
all conspirators are guilty of the felony actually committed, though having no intent to commit it,
if the offense was committed in furtherance of the unlawful purpose
and was one that should have been anticipated as a result of the carrying out of the conspiracy."

Article 37.071(b)(2) of the Code of Criminal Procedures permits the infliction of the death penalty
only if the jury believes beyond a reasonable doubt that the defendant
"intended to kill the deceased or another or anticipated that a human life would be taken."

Submitted by Adria on July 18, 2007 - 1:43pm, The Blogora
http://rsa.cwrl.utexas.edu/?q=node/1636

death penalty > Texas

Since the mid-70s,
Texas has been responsible for more than a third of all US executions;
between 2002 and 2006 it was responsible for 40%,
and last year [ 2010 ] it accounted for 50%, including two foreign nationals.

http://www.guardian.co.uk/world/2010/feb/28/linda-carty-innocent-death-row

http://www.guardian.co.uk/world/2010/feb/28/linda-carty-innocent-death-row
http://www.guardian.co.uk/world/2009/nov/15/texas-death-penalty-execution-us
http://www.guardian.co.uk/world/2009/nov/15/texas-death-row-danielle-simpson
http://www.guardian.co.uk/commentisfree/cifamerica/2009/oct/06/capital-punishment-texas-rick-perry

death penalty > Texas > Law of parties > Kenneth Foster        2007
http://www.guardian.co.uk/usa/story/0,,2152334,00.html
http://blogs.amnestyusa.org/death-penalty
http://web.amnesty.org/library/Index/ENGAMR511312007
http://tlo2.tlc.state.tx.us/statutes/docs/PE/content/word/pe.002.00.000007.00.doc
http://tlo2.tlc.state.tx.us/statutes/docs/PE/content/htm/pe.002.00.000007.00.htm
http://www.lairdcarlson.com/celldoor/00603/Foster00603TXandtheLawOfParties.htm
http://www.freekenneth.com/whoiskenneth.htm
http://www.freekenneth.com/lawofparties.htm
http://savekenneth.blogspot.com/
http://stopexecutions.blogspot.com/2007/06/kenneth-foster-case-update.html
http://www.democracynow.org/article.pl?sid=07/08/09/140214
http://www.todesstrafe-usa.de/foster/english/alive_foster.htm
http://www.counterpunch.org/jacobs07042007.html
http://www.brooklynrail.org/2007/7/express/kenneth-foster-and-the-texas-death-house
http://www.deathpenaltyinfo.org/article.php?did=2416
http://rsa.cwrl.utexas.edu/?q=node/1636
http://stopexecutions.blogspot.com/2007/08/le-monde-article-on-kenneth-foster.html
http://www.austinchronicle.com/gyrobase/Issue/story?oid=oid:524372
http://www.austinchronicle.com/gyrobase/Issue/story?oid=499233
http://www.austinchronicle.com/gyrobase/Issue/story?oid=oid%3A258647
http://houston.indymedia.org/news/2007/07/59953.php

death penalty > Prisoners' last words
http://www.guardian.co.uk/world/2009/nov/15/us-death-row-last-words

death penalty > Texas > 2006 > The last words of the 376 prisoners executed in Texas since 1982
http://www.guardian.co.uk/g2/story/0,,1876368,00.html

Texas Department of Criminal Justice > Texas execution schedule
http://www.tdcj.state.tx.us/stat/scheduledexecutions.htm

Texas Department of Criminal Justice > Death Row Information
http://www.tdcj.state.tx.us/stat/deathrow.htm

botched executions > Executions halted in California and Florida        December 2006
http://www.usatoday.com/news/nation/2006-12-15-execution-botched_x.htm

death penalty > Florida
http://www.usatoday.com/news/nation/2006-12-15-execution-botched_x.htm
http://www.usatoday.com/news/nation/2006-12-15-execution-botched_x.htm
http://www.dc.state.fl.us/oth/deathrow/index.html
http://www.dc.state.fl.us/activeinmates/deathrowroster.asp
http://www.dc.state.fl.us/oth/deathrow/execlist.html
http://www.12circuit.state.fl.us/SmithJP-SentencingOrder-Redacted.pdf

death penalty > Washington State
http://www.doc.wa.gov/deathpenalty/deathpnlty.htm

Innocence: List of Those Freed From Death Row
http://www.deathpenaltyinfo.org/article.php?scid=6&did=110

HILL v. McDONOUGH, INTERIM SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, et al.        2006
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=05-8794&friend=nytimes

5-4 Supreme Court Abolishes Juvenile Executions
ROPER, SUPERINTENDENT, POTOSI CORRECTIONAL CENTER v. SIMMONS
No. 03—633.Argued October 13, 2004–Decided March 1, 2005
http://www.law.cornell.edu/supct/html/03-633.ZS.html
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=03-633
http://www.washingtonpost.com/wp-dyn/articles/A62584-2005Mar1.html
http://www.washingtonpost.com/wp-dyn/articles/A62584-2005Mar1.html
http://www.npr.org/templates/story/story.php?storyId=4518051
http://www.cnn.com/2005/LAW/03/01/scotus.death.penalty/index.html
http://www.usatoday.com/news/washington/2005-03-01-scotus-juvenile_x.htm 

Illinois suspends death penalty > Governor calls for review of 'flawed' system        2000
http://archives.cnn.com/2000/US/01/31/illinois.executions.02/

United States Constitution > Amendment XIV
http://www.law.cornell.edu/constitution/constitution.amendmentxiv.html

United States Constitution > Amendment VIII
http://caselaw.lp.findlaw.com/data/constitution/amendment08/
http://www.law.cornell.edu/constitution/constitution.billofrights.html
http://en.wikipedia.org/wiki/Eighth_Amendment_to_the_United_States_Constitution

Death penalty reinstated        1976
These guided discretion statutes were approved in 1976 by the Supreme Court
in Gregg v. Georgia (428 U.S. 153), Jurek v. Texas (428 U.S. 262), and Proffitt v. Florida (428 U.S. 242),
collectively referred to as the Gregg decision.
This landmark decision held that the new death penalty statutes
in Florida, Georgia, and Texas were constitutional,
thus reinstating the death penalty in those states.
The Court also held that the death penalty itself was constitutional under the Eighth Amendment.
http://www.deathpenaltyinfo.org/article.php?scid=15&did=410#gregg
http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=US&vol=428&page=153
http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&vol=428&invol=153
http://en.wikipedia.org/wiki/Gregg_v._Georgia
http://www.amnestyusa.org/abolish/greggvgeorgia/

Death penalty > Gas chamber > Luis Jose Monge        1967
http://www.co.gov/dpa/doit/archives/pen/history.htm
http://www.time.com/time/archive/preview/0,10987,843865,00.html

Truman Capote's In Cold Blood        1965
http://century.guardian.co.uk/1960-1969/Story/0,,106441,00.html
http://film.guardian.co.uk/features/featurepages/0,,1686611,00.html
http://arts.guardian.co.uk/filmandmusic/story/0,,1716212,00.html
http://film.guardian.co.uk/features/featurepages/0,,1717317,00.html
http://en.wikipedia.org/wiki/Truman_Capote
http://www.pbs.org/wnet/americanmasters/database/capote_t.html
http://www.kirjasto.sci.fi/capote.htm

Death Penalty > The American Civil Liberties Union    ACLU
http://www.aclu.org/capital/index.html

Chronology of capital punishment
http://www.pbs.org/wgbh/pages/frontline/angel/timeline.html
http://www.antideathpenalty.org/history.html

Cruel and unusual
http://www.stltoday.com/stltoday/news/special/srlinks.nsf/story/75F59F513DAC775F862571B9007892E0?OpenDocument

Anti death penalty
http://hrw.org/campaigns/deathpenalty/
http://www.amnestyusa.org/abolish/index.do

Pro death penalty
http://www.clarkprosecutor.org/html/death/death.htm

High court clears way to restart lethal injection

By Joan Biskupic and Kevin Johnson        USA TODAY

16 April 2008
http://www.usatoday.com/news/washington/judicial/2008-04-16-lethal-injection_N.htm

face the death penalty

impose the death penalty

impose life without parole

death sentence
http://www.csmonitor.com/2003/1226/p02s02-usju.html

be sentenced to death
http://www.usatoday.com/news/nation/2006-03-15-brucia_x.htm

sentencing order
http://www.12circuit.state.fl.us/SmithJP-SentencingOrder-Redacted.pdf

read the official sentences — death for the murder count and life in prison for kidnapping and sexual battery
http://www.usatoday.com/news/nation/2006-03-15-brucia_x.htm

be already under a death sentence
http://www.usatoday.com/news/nation/2006-05-30-md-sniper-trial_x.htm

be spared the death penalty
http://www.usatoday.com/news/nation/2008-01-12-reservoir-bodies_N.htm

death row
http://www.guardian.co.uk/usa/story/0,,2240209,00.html
http://www.tdcj.state.tx.us/stat/deathrow.htm

death row > Texas > British citizen Linda Carty
http://www.guardian.co.uk/world/2010/feb/28/linda-carty-innocent-death-row

3,350 prisoners on death row        2007
http://www.guardian.co.uk/usa/story/0,,2179699,00.html

Federal Death Row Prisoners
http://www.deathpenaltyinfo.org/article.php?scid=29&did=193

Federal Executions        1927-2003
http://www.deathpenaltyinfo.org/article.php?scid=29&did=149

be on death row

death row cell
http://www.dc.state.fl.us/oth/vtour/deathrow.html

death row inmate

request for clemency

a final appeal to the Supreme Court

halt
http://www.usatoday.com/news/nation/2007-09-27-texas-execution_N.htm

sentence

protest her / his innocence

be worthy of mercy

commute

commute his sentence to life in prison

be rejected

deny a clemency petition to commute his sentence to life in prison

be scheduled to die on Wednesday night by lethal injection

the state's Board of Pardons and Paroles

a parolee with a long criminal history
http://www.usatoday.com/news/nation/2006-03-23-student-strangled_x.htm

appeal

at the 11th U.S. Circuit Court of Appeals in Atlanta

stay
http://www.usatoday.com/news/washington/2006-01-24-scotus-fla-execution_x.htm

be stayed
http://www.nytimes.com/2008/10/25/us/25execute.html

grant a stay of execution to

lift the stay

refuse to grant a stay of execution

grant clemency
http://www.usatoday.com/news/nation/2006-08-29-sd-execution_x.htm

reject clemency for

Statement of Decision > Request for clemency by Stanley Williams        2005
http://graphics8.nytimes.com/packages/pdf/national/Williams_Clemency_Decision.pdf

execute
http://www.usatoday.com/news/nation/2006-10-25-college-killer-execution_x.htm

execution date

botched execution / bungled execution
http://www.guardian.co.uk/usa/story/0,,2182952,00.html
http://www.guardian.co.uk/usa/story/0,,1973512,00.html

put to death

electric chair
http://timesonline.typepad.com/timesarchive/2009/03/death-penalties.html
http://www.supremecourt.ne.gov/opinions/2008/february/feb8/s05-1268.pdf
http://www.nytimes.com/aponline/us/AP-Nebraska-Death-Penalty.html

be executed in the electric chair

be put to death by electrocution

Virginia law > elect to die by electrocution rather than lethal injection

Old Sparky

dead man walking

anesthesiologist
http://www.usatoday.com/news/nation/2006-02-21-morales_x.htm

lethal injection
http://www.reuters.com/article/newsOne/idUSWAT00935320080417
http://www.usatoday.com/news/washington/judicial/2008-04-16-lethal-injection_N.htm
http://www.reuters.com/article/topNews/idUSWAT00935320080416
http://www.usatoday.com/news/washington/2008-04-16-scotus-lethal-injection_N.htm
http://www.usatoday.com/news/washington/2008-01-03-court_N.htm
http://www.usatoday.com/news/nation/2007-09-25-texas-execution_n.htm
http://www.guardian.co.uk/usa/story/0,,2179699,00.html

firing squad
http://www.nytimes.com/2010/06/19/us/19death.html
http://www.guardian.co.uk/world/2010/jun/18/utah-execution-ronnie-lee-gardner
http://www.guardian.co.uk/world/video/2010/jun/18/killer-executed-firing-squad-utah
http://www.guardian.co.uk/world/2010/jun/18/capital-punishment-utah
http://www.guardian.co.uk/world/audio/2010/jun/18/utah-firing-squad-ronnie-gardner

witness
http://www.guardian.co.uk/world/2010/jun/18/capital-punishment-utah

moratorium
http://www.nytimes.com/2008/04/17/washington/17lethal.html

death penalty > doctors > Dr. Alan R. Doerhoff
http://www.stltoday.com/stltoday/news/stories.nsf/stlouiscitycounty/story/
A0A388E409609321862571BA005D525D?OpenDocument
http://www.stltoday.com/stltoday/news/special/srlinks.nsf/story/
40A21404C94745B3862571B900786D00?OpenDocument

execution
http://www.timesonline.co.uk/article/0,,11069-1989403,00.html

inmate

handcuffs and leg irons

Sentenced to death for crimes they did not commit: the men who lived to tell the tale
http://www.guardian.co.uk/usa/story/0,,2210490,00.html

Utah Executes Murderer by Firing Squad

June 18, 2010
The New York Times
By KIRK JOHNSON

DENVER — A five-member firing squad at the Utah State Prison took aim and fired .30-caliber bullets at a target pinned on the chest of Ronnie Lee Gardner, a convicted murderer, just after midnight on Friday. He was pronounced dead at 12:20 a.m. Mountain Time, after almost 25 years on death row, and several months as the center of international attention focused not so much on crime as his punishment.

It was the third firing squad execution in Utah — the only state actively practicing that form of punishment — since 1976, when the death penalty was restored by the United States Supreme Court.

“The execution warrant for Mr. Gardner has been served,” The Utah Department of Corrections said in statement.

Mr. Gardner, 49, was convicted in 1985 and sentenced to death for murdering a man in a botched courthouse escape attempt. Last minute appeals on Thursday filed by his lawyers with the United States Supreme Court, the Tenth Circuit Court of Appeals in Denver and Governor Gary R. Herbert were all rejected.

“Mr. Gardner has had a full and fair opportunity to have his case considered by numerous tribunals,” said Mr. Herbert, a Republican, in a letter refusing to stay the execution. “Upon careful review, there is nothing in the materials provided this morning that has not already been considered and decided.”

In the 1985 courthouse escape attempt and shootout — during a hearing about an earlier murder committed by Mr. Gardner at a Salt Lake City bar — he killed an attorney, Michael Burdell, and wounded a court bailiff. The family members of those victims, testifying at a hearing earlier this month before the Utah Board of Pardons and Parole, were divided on the question of punishment, with some favoring execution and some pleading that the defendant’s life be spared.

Mr. Gardner’s attorneys also argued that jurors in the case voted for the death penalty without hearing adequate testimony about the years of abuse he had suffered as a child.

But a member of Mr. Gardner’s legal team, Dale A. Baich, said in a telephone interview a few hours before the execution that Mr. Gardner appeared to have accepted his fate.

“He’s comfortable and he’s at peace,” Mr. Baich said.

Only Utah, of the 35 states that impose the death penalty, still has death by shooting as an option, and then only for some. In 2004, the state legislature changed the penal code, mandating all executions thereafter by lethal injection. A person convicted of a capital crime who received his or her death sentence before the legal change took effect, however, can still choose between lethal injection and the firing squad.

Four other death row inmates, grandfathered in under the old law as Mr. Gardner was, have indicated that they may take the firing squad option if and when their time comes.

The last firing squad execution here was in 1996, when John Albert Taylor, convicted of raping and strangling an 11-year-old girl, was put to death. Mr. Gardner chose the firing squad as his means of execution, over lethal injection, in a hearing in April.

The only other state with a firing squad option in its penal code is Oklahoma, which would allow shooting of condemned prisoners only if lethal injection and electrocution are found unconstitutional.

Executions are not common in Utah. Mr. Gardner was only the seventh person put to death since 1976, compared to more than 450 in Texas. But in executions per capita — measured against Utah’s much smaller population — the state ranked 19th highest in the nation, according to calculations last year by the Death Penalty Information Center, an anti-capital punishment group. Mr. Gardner ate his last meal on Tuesday, prison officials said, having decided to fast prior to his death.

The meal included steak, lobster tail, apple pie, vanilla ice cream and 7-Up, all prepared and served at the Utah State Prison, where the execution took place, about 20 miles south of Salt Lake City. After being moved to an observation cell on Wednesday night, Mr. Gardner spent his time sleeping, reading and watching the “Lord of The Rings” trilogy, the Utah Department of Corrections said on its Web site.

    Utah Executes Murderer by Firing Squad, NYT, 18.6.2010, http://www.nytimes.com/2010/06/19/us/19death.html

Death Sentences Dropped, but Executions Rose in ’09

December 18, 2009
The New York Times
By JOHN SCHWARTZ

More death row convicts were executed in the United States this year than last, but juries continue to grow more wary of capital punishment, according to a new report.

Death sentences handed down by judges and juries in 2009 continued a trend of decline for seven years in a row, with 106 projected for the year. That level is down two-thirds from a peak of 328 in 1994, according to the report being released Friday by the Death Penalty Information Center, a research organization that opposes capital punishment.

“This entire decade has been marked by a declining use of the death penalty,” said Richard Dieter, the executive director of the group.

The sentencing drop was most striking in Texas, which averaged 34 death sentences a year in the 1990s and had 9 this year. Vic Wisner, a former assistant district attorney in Houston, said a “constant media drumbeat” about suspect convictions and exonerations “has really changed the attitude of jurors.”

Mr. Wisner said that while polls showed continued general support for capital punishment, “there is a real worry by jurors of, ‘I believe in it, but what if we later find out it was someone else and it’s too late to do anything about it?’ ”

In 2005, Texas juries were given the option of sentencing defendants to life without parole.

While death sentences are in decline, executions rose in the past year, according to the new report. Fifty-two prisoners have been put to death in 2009, compared with 42 in 2007 and 37 in 2008.

The report also noted that in 2009 New Mexico became the 15th state to repeal the death penalty, in part because of budget considerations and the high cost of death penalty appeals, which Gov. Bill Richardson called “a valid reason” for eliminating the ultimate sanction “in this era of austerity and tight budgets.”

But Kent Scheidegger, the legal director of the Criminal Justice Legal Foundation, which supports capital punishment, argued that the decline in death sentences also corresponded to a decline in the murder rate, and criticized efforts to use cost arguments against the death penalty. The government could “knock a large chunk off of the cost” of execution by streamlining the review process, he said.

Douglas A. Berman, an expert on sentencing law at Ohio State University, suggested that the rise in executions was due to last year’s relatively low number, as states grappled with the implications of a major 2008 Supreme Court decision on lethal injection.

In that case, Baze v. Rees, the court ended what amounted to a moratorium of several months, beginning in 2007, on lethal injection executions by proclaiming that the procedure used in Kentucky and other states with similar methods did not violate the constitutional prohibition against cruel and unusual punishment.

This “post-Baze echo” in the figures, Mr. Berman said, can be seen in the execution in Ohio this month of Kenneth Biros. It came after a legal challenge to Ohio’s protocol, a botched execution under the state’s three-drug method for another prisoner, and a shift to a one-drug execution method. While other court challenges to lethal injection are proceeding around the country, he said, Ohio’s action suggests that “states are moving forward.”

    Death Sentences Dropped, but Executions Rose in ’09, NYT, 18.12.2009, http://www.nytimes.com/2009/12/18/us/18death.html

New Execution Method Is Used in Ohio

December 9, 2009
The New York Times
By IAN URBINA

Ohio prison officials executed a death row inmate, Kenneth Biros, Tuesday with a one-drug intravenous lethal injection, a method never before used on a human.

The new method, which involved a large dose of anesthesia, akin to how animals are euthanized, has been hailed by most experts as painless and an improvement over the three-drug cocktail used in most states, but it is unlikely to settle the debate over the death penalty.

While praising the shift to a single drug, death penalty opponents argue that Ohio’s new method, and specifically its backup plan of using intra-muscular injection, has not been properly vetted by legal and medical experts and that since it has never been tried out on humans before, it is the equivalent of human experimentation.

But the United States Supreme Court refused to intervene on Tuesday morning, and the procedure went largely as planned.

Mr. Biros, 51, died at 11:47 a.m., holding a white scarf. The scarf, which symbolizes a blessing, was given to Mr. Biros by two Buddhist spiritual advisers that Mr. Biros had consulted in recent weeks.

Ohio became the first state to adopt the one-drug method after prison officials postponed an execution in September. During that execution attempt, they could not find a usable vein to inject three chemicals in the inmate, Romell Broom, 53, who was convicted of the 1984 abduction, rape and murder of a 14-year-old girl.

Mr. Biros was convicted of killing Tami Engstrom, 22, near Warren, in northeastern Ohio, in 1991 after offering to drive her home from a bar, then scattered her body parts in Ohio and Pennsylvania. He acknowledged killing her but said it was done during a drunken rage.

Ms. Engstrom’s mother, brother and sister attended the execution, as did one of Mr. Biros’s lawyers, John Parker, and two of Mr. Biros’s friends.

As Ms. Engstrom’s family members entered the prison Tuesday, a reporter asked if they were ready. “We’ve been ready for 18 years,” one of the Engstroms said, according to The Columbus Dispatch.

Shortly before the execution, Mr. Biros gave his personal belongings — seven CDs, an address book, a portable CD player, a rosary and a notebook — to his siblings.

It was the second trip to the holding cell for Mr. Biros, who spent a day and night there in March 2007 as his lawyers scrambled to halt his execution. The Supreme Court intervened that time because of challenges over the use of the three-drug cocktail.

Opponents of the death penalty have long argued that using a single drug is more humane than the three-drug cocktail, which involves a short-acting barbiturate to render the inmate unconscious, followed by a paralytic and then a chemical to stop the heart.

Still, death penalty opponents criticized the state for not allowing more time for closer scrutiny of the new protocol.

“The key is due process,” said Richard C. Dieter, executive director of the Death Penalty Information Center in Washington. He said that, for example, when New York introduced the electric chair in 1890, the case went to the Supreme Court, which decided that the punishment might be more humane than hanging.

“The court held that death row prisoner received due process because the New York Legislature had considered the punishment method carefully,” he added. “In this case, however, everyone has taken the Ohio Department of Corrections at their word, without an adversarial debate.”

Deborah W. Denno, a Fordham University law professor who is an expert on the death penalty and lethal injection, added that she believed the constitutionality of the new state protocol could be challenged if it is found not to be “substantially similar” to the three-drug method used by the state of Kentucky, which the court approved last year.

A federal judge in Ohio disagreed, however, and on Monday he denied a request from Mr. Biros to delay his execution until lawyers could conduct a review of the new protocol.

The judge, Gregory L. Frost of United States District Court, said that Mr. Biros had not demonstrated “at this juncture” that the new protocol is unconstitutional.

But the judge also said “It does not foreclose the possibility that additional evidence will indeed prove that the problems with Ohio’s policies and practice rise to a constitutional error.”

On Monday night, Mr. Biros’s lawyers filed an emergency request with the Supreme Court asking for his execution to be stopped.

Tim Sweeney, one of Mr. Biros’s lawyers, said that while the shift to a single-drug cocktail was a positive development, many concerns remained.

The state still relies on unqualified executioners who may not know how to find a usable vein, and the new protocol does not clearly set a limit on how long prison officials will keep sticking the patient with a needle if veins are collapsed before they transition to the backup plan, he said. The drug used in the backup plan has demonstrated side effects — nausea, vomiting, severe disorientation — which may make the experience more painful than prison officials realize, he added.

Mr. Biros was moved to the holding area for death row inmates about 15 feet from the death chamber at the Southern Ohio Correctional Facility in Lucasville on Monday morning, prison officials said.

In the afternoon, he had a snack of peanut butter and jelly sandwiches. At night, he was to be served a meal of cheese pizza, onion rings, fried mushrooms, Doritos chips, French onion dip, blueberry ice cream, cherry pie and Dr Pepper soda, they said.

On Tuesday, Mr. Biros received communion and seemed calm as he awaited his fate, prison officials said.

    New Execution Method Is Used in Ohio, NYT, 9.12.2009, http://www.nytimes.com/2009/12/09/us/09ohio.html

One Reporter’s Lonely Beat, Witnessing Executions

October 21, 2009
The New York Times
By RICHARD PÉREZ-PEÑA

Of all the consequences of shrinking newsrooms, one of the oddest is this: Fewer journalists are available to watch people die. But Michael Graczyk has witnessed more than 300 deaths, and many of those were people he had come to know.

An Associated Press reporter based in Houston, Mr. Graczyk covers death penalty cases in Texas, the state that uses capital punishment far more than any other, and since the 1980s, he has attended nearly every execution the state has carried out — he has lost track of the precise count. Whenever possible, he has also interviewed the condemned killers and their victims’ families.

What makes his record all the more extraordinary is that often, Mr. Graczyk’s has been the only account of the execution given to the world at large. Covering executions was once considered an obligatory — if often ghoulish — part of what a newspaper did, like writing up school board meetings and printing box scores, but one by one, such dutiful traditions have fallen away.

A generation ago, he had plenty of company from other journalists at the prison at Huntsville, about an hour’s drive north of Houston, where executions in Texas are carried out. But then Texas executions went from rare to routine, and shrinking news organizations found it harder to justify the expense of what was, from most parts of the state, a long trip.

“There are times when I’m the only person present who doesn’t have a stake in the outcome,” he said.

Seeing inmates in the death chamber, strapped to a gurney and moments away from lethal injections, he has heard them greet him by name, confess to their crimes for the first time, sing, pray and, once, spit out a concealed handcuff key. He has stood shoulder to shoulder with other witnesses who stared, wept, fainted, turned their backs or, in one case, exchanged high-fives.

No reporter, warden, chaplain or guard has seen nearly as many executions as Mr. Graczyk, 59, Texas prison officials say. In fact, he has probably witnessed more than any other American. It could be emotionally and politically freighted work, but he takes it with a low-key, matter-of-fact lack of sentiment, refusing to hint at his own view of capital punishment.

Given a choice between the death chamber’s two viewing rooms, he usually chooses the one for the victim’s family rather than the side for the inmate’s, partly “because I can get out faster and file the story faster.”

“My job is to tell a story and tell what’s going on, and if I tell you that I get emotional on one side or another, I open myself to criticism,” he said.

The A.P. attends every execution, a policy that newspapers around the state encourage.

“Our staff is half the size it was three years ago, and so it’s just much more difficult to send somebody,” said Jim Witt, executive editor of The Fort Worth Star-Telegram. “But we know we can depend on The A.P., so I can send my reporters to something else.”

Newspapers sometimes use The A.P.’s reporting rather than their own — or they do not cover the executions at all. What was once a statewide story has become of strictly local interest.

A few papers, like The Houston Chronicle, still routinely cover executions in cases from their home counties, but not those from other parts of the state. Only one paper regularly covers executions no matter which part of the state the cases come from: The Huntsville Item, a small publication based near the prison.

This year, the state has put to death five inmates in cases from Tarrant County, which includes Fort Worth. The Star-Telegram covered one, wrote about two other cases in the days before the executions, and on the remaining two did not publish any articles, either its own or The A.P.’s.

“It depends on whether the crime was particularly newsworthy,” Mr. Witt said.

This year, a case from El Paso County resulted in an execution for that county for the first time in 22 years, but rather than send a reporter to Huntsville, some 650 miles away, The El Paso Times quoted extensively from Mr. Graczyk’s report.

“We actually put in to attend that one, and we were granted a spot, but when the editors explained the case to me, and the local connection was minimal, I said it wasn’t a compelling enough case,” said Chris V. Lopez, editor of The Times.

He said the expense of traveling to Huntsville was not a major consideration, but “it has to be a case that has a lot of local impact,” adding that the paper plans to attend a scheduled execution in a more prominent case.

Mr. Graczyk, who also writes on a wide range of other topics, developed his unusual specialty in the mid-1980s, a few years after Texas resumed executions after a long hiatus. He often covers the crimes, the trials and the appeals, immersed in details so gruesome it is hard to imagine they are real.

At first there were just a handful of executions each year, but the pace of capital punishment in Texas stepped up sharply through the next decade. The state has put 441 inmates to death since 1982, more than the next six states combined. That includes 334 since the start of 1997, a period in which Texas accounted for 41 percent of the national total.

“The act is very clinical, almost anticlimactic,” Mr. Graczyk said. “When we get into the chamber here in Texas, the inmate has already been strapped to the gurney and the needle is already in his arm.”

Witnesses are mostly subdued, he said, and while “some are in tears, outright jubilation or breakdowns are really rare.”

They stand on the other side of a barrier of plexiglass and bars, able to hear the prisoner through speakers. And the only sound regularly heard during the execution itself, is of all things, snoring. A three-drug cocktail puts the inmate to sleep within seconds, while death takes a few minutes. Victims’ family members often remark that the killer’s death seems too peaceful.

But before the drugs flow, the inmate is allowed to make a last statement, giving Mr. Graczyk what even he acknowledges are some lasting, eerie memories.

One inmate “sang ‘Silent Night,’ even though it wasn’t anywhere near Christmas,” Mr. Graczyk said. “I can’t hear that song without thinking about it. That one really stuck with me.”

    One Reporter’s Lonely Beat, Witnessing Executions, NYT, 21.10.2009, http://www.nytimes.com/2009/10/21/business/media/21execute.html

Editorial

High Cost of Death Row

September 28, 2009
The New York Times

To the many excellent reasons to abolish the death penalty — it’s immoral, does not deter murder and affects minorities disproportionately — we can add one more. It’s an economic drain on governments with already badly depleted budgets.

It is far from a national trend, but some legislators have begun to have second thoughts about the high cost of death row. Others would do well to consider evidence gathered by the Death Penalty Information Center, a research organization that opposes capital punishment.

States waste millions of dollars on winning death penalty verdicts, which require an expensive second trial, new witnesses and long jury selections. Death rows require extra security and maintenance costs.

There is also a 15-to-20-year appeals process, but simply getting rid of it would be undemocratic and would increase the number of innocent people put to death. Besides, the majority of costs are in the pretrial and trial.

According to the organization, keeping inmates on death row in Florida costs taxpayers $51 million a year more than holding them for life without parole. North Carolina has put 43 people to death since 1976 at $2.16 million per execution. The eventual cost to taxpayers in Maryland for pursuing capital cases between 1978 and 1999 is estimated to be $186 million for five executions.

Perhaps the most extreme example is California, whose death row costs taxpayers $114 million a year beyond the cost of imprisoning convicts for life. The state has executed 13 people since 1976 for a total of about $250 million per execution. This is a state whose prisons are filled to bursting (unconstitutionally so, the courts say) and whose government has imposed doomsday-level cuts to social services, health care, schools and parks.

Money spent on death rows could be spent on police officers, courts, public defenders, legal service agencies and prison cells. Some lawmakers, heeding law-enforcement officials who have declared capital punishment a low priority, have introduced bills to abolish it.

A Republican state senator in Kansas, Carolyn McGinn, pointed out that her state, which restored the death penalty in 1994, had not executed anybody in more than 40 years. In February, she introduced a bill to replace capital punishment with life without parole. The bill gained considerable attention but stalled. Similar arguments were made, unsuccessfully, in states such as New Hampshire and Maryland. Colorado considered a bill to end capital punishment and spend the money saved on solving cold cases. But this year, only New Mexico went all the way, abolishing executions in March.

If lawmakers cannot find the moral courage to abolish the death penalty, perhaps the economic case will persuade them to follow the lead of New Mexico.

    High Cost of Death Row, NYT, 28.9.2009, http://www.nytimes.com/2009/09/28/opinion/28mon3.html

Ohio Plans to Try Again as Execution Goes Wrong

September 17, 2009
The New York Times
By BOB DRIEHAUS

CINCINNATI — The State of Ohio plans to try again next week to execute a convicted rapist-murderer, after a team of technicians spent two hours on Tuesday in an unsuccessful effort to inject him with lethal drugs.

This is the first time an execution by lethal injection in the United States has failed and then been rescheduled, according to Richard C. Dieter, executive director of the Death Penalty Information Center, in Washington.

The only similar case in modern times, Mr. Dieter said, occurred in Louisiana in 1946, when electric shock failed to kill a convicted murderer, Willie Francis. He was electrocuted the next year, after the United States Supreme Court ruled that executing a prisoner in the wake of a failed first attempt was constitutional.

Tuesday’s one-week postponement was ordered by Gov. Ted Strickland after he was alerted by the Ohio corrections department that technicians at the state prison in Lucasville, some 70 miles east of Cincinnati, had struggled for more than two hours to find a suitable vein in either the arms or the legs of the inmate, Romell Broom, 53.

In a log reviewed by The Associated Press, the executioners attributed their troubles to past intravenous drug use by Mr. Broom. Amanda Wurst, a spokeswoman for the governor, said that Mr. Broom had once told officials he had been an IV drug user but that he had later recanted. His lawyers said they were not aware of any IV drug use.

Mr. Broom was convicted of the 1984 abduction, rape and killing of Tryna Middleton, 14, who had been walking home from a football game in Cleveland with two friends.

His lawyers described what happened Tuesday as torture and said they would try to block the execution. One of them, Adele Shank, said: “He survived this execution attempt, and they really can’t do it again. It was cruel and unusual punishment.”

Ms. Shank watched Tuesday’s procedure on closed-circuit television. “I could see him on the screen,” she said, “and it was apparent to me that he was wincing with pain.”

The Ohio chapter of the American Civil Liberties Union said Wednesday that the state must abolish lethal injection.

“This is the third screwed-up execution in three years,” said Jeffrey M. Gamso of the A.C.L.U. of Ohio. “They keep tweaking their protocol, but it takes more than tweaks. They don’t know how to do this competently, and they need to stop.”

In referring to two previous troubled executions in Ohio, Mr. Gamso was speaking of the death of Joseph Clark in 2006, delayed more than an hour because of problems with IV placement, and the 2007 execution of Christopher Newton, also delayed more than an hour while technicians tried at least 10 times to insert the IV.

The director of the state corrections department, Terry J. Collins, said he and his staff were seeking the advice of doctors and others to plan for a successful execution next Tuesday.

“I won’t have discussions about ‘what if it doesn’t work next week’ at this point,” Mr. Collins said, “because I have confidence that my team will be able to do its job.”

Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, which supports the death penalty, said problems with veins were inevitable in lethal injection by IV.

Mr. Scheidegger said he favored execution methods involving intramuscular injection or a return to gas chambers, but with a poison other than cyanide, which was long under attack because of the suffering it can inflict.

Mr. Dieter, of the Death Penalty Information Center, said that given the likelihood of legal appeals, there was little chance that Mr. Broom would be put to death next Tuesday.

“The question of whether this is still an acceptable punishment in our society,” he said of executions generally, “is compounded by this mistake.”

 

John Schwartz contributed reporting from New York.

    Ohio Plans to Try Again as Execution Goes Wrong, NYT, 17.9.2009, http://www.nytimes.com/2009/09/17/us/17ohio.html

Op-Ed Columnist

Innocent but Dead

September 1, 2009
The New York Times
By BOB HERBERT

There is a long and remarkable article in the current New Yorker about a man who was executed in Texas in 2004 for deliberately setting a fire that killed his three small children. Rigorous scientific analysis has since shown that there was no evidence that the fire in a one-story, wood frame house in Corsicana was the result of arson, as the authorities had alleged.

In other words, it was an accident. No crime had occurred.

Cameron Todd Willingham, who refused to accept a guilty plea that would have spared his life, and who insisted until his last painful breath that he was innocent, had in fact been telling the truth all along.

It was inevitable that some case in which a clearly innocent person had been put to death would come to light. It was far from inevitable that this case would be the one. “I was extremely skeptical in the beginning,” said the New Yorker reporter, David Grann, who began investigating the case last December.

The fire broke out on the morning of Dec. 23, 1991. Willingham was awakened by the cries of his 2-year-old daughter, Amber. Also in the house were his year-old twin girls, Karmon and Kameron. The family was poor, and Willingham’s wife, Stacy, had gone out to pick up a Christmas present for the children from the Salvation Army.

Willingham said he tried to rescue the kids but was driven back by smoke and flames. At one point his hair caught fire. As the heat intensified, the windows of the children’s room exploded and flames leapt out. Willingham, who was 23 at the time, had to be restrained and eventually handcuffed as he tried again to get into the room.

There was no reason to believe at first that the fire was anything other than a horrible accident. But fire investigators, moving slowly through the ruined house, began seeing things (not unlike someone viewing a Rorschach pattern) that they interpreted as evidence of arson.

They noticed deep charring at the base of some of the walls and patterns of soot that made them suspicious. They noticed what they felt were ominous fracture patterns in pieces of broken window glass. They had no motive, but they were convinced the fire had been set. And if it had been set, who else but Willingham would have set it?

With no real motive in sight, the local district attorney, Pat Batchelor, was quoted as saying, “The children were interfering with his beer drinking and dart throwing.”

Willingham was arrested and charged with capital murder.

When official suspicion fell on Willingham, eyewitness testimony began to change. Whereas initially he was described by neighbors as screaming and hysterical — “My babies are burning up!” — and desperate to have the children saved, he now was described as behaving oddly, and not having made enough of an effort to get to the girls.

And you could almost have guaranteed that a jailhouse snitch would emerge. They almost always do. This time his name was Johnny Webb, a jumpy individual with a lengthy arrest record who would later admit to being “mentally impaired” and on medication, and who had started taking illegal drugs at the age of 9.

The jury took barely an hour to return a guilty verdict, and Willingham was sentenced to death.

He remained on death row for 12 years, but it was only in the weeks leading up to his execution that convincing scientific evidence of his innocence began to emerge. A renowned scientist and arson investigator, Gerald Hurst, educated at Cambridge and widely recognized as a brilliant chemist, reviewed the evidence in the Willingham case and began systematically knocking down every indication of arson.

The authorities were unmoved. Willingham was executed by lethal injection on Feb. 17, 2004.

Now comes a report on the case from another noted scientist, Craig Beyler, who was hired by a special commission, established by the state of Texas to investigate errors and misconduct in the handling of forensic evidence.

The report is devastating, the kind of disclosure that should send a tremor through one’s conscience. There was absolutely no scientific basis for determining that the fire was arson, said Beyler. No basis at all. He added that the state fire marshal who investigated the case and testified against Willingham “seems to be wholly without any realistic understanding of fires.” He said the marshal’s approach seemed to lack “rational reasoning” and he likened it to the practices “of mystics or psychics.”

Grann told me on Monday that when he recently informed the jailhouse snitch, Johnny Webb, that new scientific evidence would show that the fire wasn’t arson and that an innocent man had been killed, Webb seemed taken aback. “Nothing can save me now,” he said.

    Innocent but Dead, NYT, 1.9.2009, http://www.nytimes.com/2009/09/01/opinion/01herbert.html

In ’98, Hints From Sotomayor on Death Penalty

June 25, 2009
The New York Times
By BENJAMIN WEISER

As a drug kingpin and his bodyguard, both black, faced the first death penalty trial in Manhattan since the days of the Rosenbergs, their lawyers argued that the practice of capital punishment was racist.

“We’re doing what the death penalty has always done historically, which is target minority people,” one of the lawyers said in 1998 as he asked a Federal District Court judge to declare the penalty unconstitutional.

That judge was Sonia Sotomayor — a Bronx-born woman of Puerto Rican descent who as a young lawyer had leveled much the same attack on capital punishment. And as she listened to the arguments that day, she acknowledged there were many unresolved “tensions” surrounding the death penalty.

But she flatly told the lawyers she had no power to resolve them. “I don’t as a judge,” she said. “They are not up to me. Ultimately, they are up to Congress and the Supreme Court.”

Judge Sotomayor, of course, is now up for a seat on the Supreme Court, and her nomination has sparked questions about her early advocacy and whether that might flavor her performance as a justice.

The 1998 case, the only death penalty matter she appears to have handled on the federal bench, offers some answers. Transcripts provide a revealing look at the judge, acting as an official arbiter on an issue she once addressed strongly — and weighing the lives of two men.

The case record shows she was curious enough about the defense arguments that she ordered prosecutors to produce data on the race of defendants considered for the death penalty. But it also shows she was tough on defense lawyers, repeatedly challenging their claims that minority defendants were disproportionately singled out.

She even rejected the same kind of statistical argument against capital punishment that she had made years earlier as a lawyer, saying it was not sufficient to prove discrimination.

“We gave her enough ammunition that she could have struck down the death penalty,” recalled David A. Ruhnke, a defense lawyer in the case. “Whether it would have stood up in the U.S. Supreme Court, who knows? But we gave her enough room to do it — had she wanted to reach out and do it — and she didn’t.”

In the end, Judge Sotomayor never ruled on the merits of the death penalty, even though her remarks made clear that she was unlikely to find it unconstitutional. Some two years into the case, she was elevated to the federal appellate bench in New York, and the case was handed to another judge, who declined to strike down the law. Both defendants pleaded guilty and avoided execution.

But Judge Sotomayor conducted three lively pretrial hearings that explored the death penalty. In more than 100 pages of transcripts, she emerges as deeply engaged, vocal and demanding, scrutinizing both sides and sometimes floating provocative ideas.

At one point, pressed by defense lawyers to resolve the death penalty’s inequities, she advised them to be careful what they wished for.

“As my law clerk said to me the other day, what is the remedy? Should we just have more people sentenced to capital punishment? That’s as effective a remedy as having fewer people sentenced to capital punishment if we find that we need to remedy some overall societal inequity.”

Judge Sotomayor, who turns 55 on Thursday, has spoken very little publicly about the death penalty during her long career, which included about five years as an assistant district attorney in Manhattan. But conservatives who oppose her nomination have seized on a 1981 internal memo signed by her and two other directors of the Puerto Rican Legal Defense and Education Fund recommending that the organization oppose restoration of the death penalty in New York State.

The memo said capital punishment was “associated with evident racism in our society” and cited statistics to show that “the number of minorities and the poor executed or awaiting execution is out of proportion to their numbers in the population.”

Seventeen years later, she heard a similar argument on behalf of two defendants charged with multiple murders: Clarence Heatley, who led a multimillion-dollar crack-cocaine operation based in the Bronx, and his bodyguard, John Cuff, a former New York City housing police officer.

In 1997, Mary Jo White, the United States attorney in Manhattan, received authorization from Attorney General Janet Reno to seek the death penalty against both men. Congress had reinstituted the federal death penalty in recent years, and Ms. White’s office had considered a dozen other cases before settling on Mr. Heatley’s and Mr. Cuff’s.

Before the men could be tried, however, Judge Sotomayor had to consider their lawyers’ challenge to the law. They presented data showing that since 1988, the federal government had authorized 119 capital cases, with 79 percent involving minority defendants. Of the 16 men who had been sentenced to death, 13 were members of minorities.

But the judge agreed with prosecutors that the numbers alone did not prove discrimination in this case. The high percentage of minority defendants, she said, “tells me nothing about the pool from which that number comes from.” She said the defense had to offer more — “some actual proof of discrimination besides statistical evidence, because it can be manipulated.”

The defense had, indeed, tried to get more evidence, asking the judge to order the government to produce information on federal defendants across the country who had been considered for capital punishment, and on how each decision had been reached.

Judge Sotomayor balked. “The only way that we can end up with your getting anything that would be admissible,” she said, “is if we literally redid all of the deliberative processes in every single case that was eligible for the death penalty.”

Ultimately, she agreed to order data on the racial and ethnic composition of the pool of defendants.

“I would like to see the numbers myself,” she said. “I do agree with you that the death population in the federal system is so disparately different from the general population that one look more should be done, at least an initial inquiry.”

The judge also seemed open to the idea of allowing the defense, during a possible future sentencing hearing, to tell the jury that other murderers had been spared the death penalty.

She said: “You can very well see a potential argument by the defense that says, If Joe Blow, who kills his wife, 10 children, his mother, and didn’t get the death penalty, why should my client? Why shouldn’t society put to death murderers of more heinous crimes? These are drug dealers killing drug dealers.”

Judge Sotomayor was not shy about asserting a personal opinion. She allowed that in the past five years, she had noticed “a sea change” in Manhattan federal prosecutors’ handling of the death penalty — an apparent reference to an increase in cases considered for capital punishment and new policies on how such decisions were made. But she dismissed the defense’s claim that racial bias was the cause.

“It may be based on politics,” she said, “since it’s the only explanation that could justify the sea change. But I have no basis to believe, in what you presented me with or otherwise, that it’s based on race.”

Whatever her own feelings on capital punishment, the judge showed a willingness to understand and apply the death penalty law, even if the result could be two executions. When the prosecutor, Andrew S. Dember, seemed to ask for too much legal leeway on one point, she cautioned that his approach could lead to a reversal of any verdict.

“Remember two things,” she told him. “A conviction is important. Surviving conviction is more important.”

She also had a pointed word for the defense: Do not expect the Supreme Court to abolish capital punishment anytime soon.

Mr. Ruhnke, the defense lawyer, had suggested that in 50 years there might not be a death penalty. He asserted that the Supreme Court almost struck down capital punishment in a 1987 case involving racial disparities. The author of the 5-to-4 ruling, Justice Lewis F. Powell Jr., later said he regretted his vote.

“It was that close to being no death penalty,” Mr. Ruhnke said.

Judge Sotomayor suggested that the Supreme Court of 1998 was even less likely to overturn the penalty than the court had been in 1987.

“Unfortunately for your client, regardless of what the makeup of the decision-making will be 50 years from now, in the short run,” she said, the death penalty “will still be here.”

    In ’98, Hints From Sotomayor on Death Penalty, NYT, 25.6.2009, http://www.nytimes.com/2009/06/25/us/politics/25death.html?hp

Op-Ed Contributor

Death Penalty Disgrace

June 1, 2009
The New York Times
By BOB BARR

THERE is no abuse of government power more egregious than executing an innocent man. But that is exactly what may happen if the United States Supreme Court fails to intervene on behalf of Troy Davis.

Mr. Davis is facing execution for the 1989 murder of an off-duty police officer in Savannah, Ga., even though seven of the nine witnesses have recanted their testimony against him. Many of these witnesses now say they were pressured into testifying falsely against him by police officers who were understandably eager to convict someone for killing a comrade. No court has ever heard the evidence of Mr. Davis’s innocence.

After the United States Court of Appeals for the 11th Circuit barred Mr. Davis from raising his claims of innocence, his attorneys last month petitioned the Supreme Court for an original writ of habeas corpus. This would be an extraordinary procedure — provided for by the Constitution but granted only a handful of times since 1900. However, absent this, Mr. Davis faces an extraordinary and obviously final injustice.

This threat of injustice has come about because the lower courts have misread the Anti-Terrorism and Effective Death Penalty Act of 1996, a law I helped write when I was in Congress. As a member of the House Judiciary Committee in the 1990s, I wanted to stop the unfounded and abusive delays in capital cases that tend to undermine our criminal justice system.

With the effective death penalty act, Congress limited the number of habeas corpus petitions that a defendant could file, and set a time after which those petitions could no longer be filed. But nothing in the statute should have left the courts with the impression that they were barred from hearing claims of actual innocence like Troy Davis’s.

It would seem in everyone’s interest to find out as best we can what really happened that night 20 years ago in a dim parking lot where Officer Mark MacPhail was shot dead. With no murder weapon, surveillance videotape or DNA evidence left behind, the jury that judged Mr. Davis had to weigh the conflicting testimony of several eyewitnesses to sift out the gunman from the onlookers who had nothing to do with the heinous crime.

A litany of affidavits from prosecution witnesses now tell of an investigation that was focused not on scrutinizing all suspects, but on building a case against Mr. Davis. One witness, for instance, has said she testified against Mr. Davis because she was on parole and was afraid the police would send her back to prison if she did not cooperate.

So far, the federal courts have said it is enough that the state courts reviewed the affidavits of the witnesses who recanted their testimony. This reasoning is misplaced in a capital case. Reading an affidavit is a far cry from seeing a witness testify in open court.

Because Mr. Davis’s claim of innocence has never been heard in a court, the Supreme Court should remand his case to a federal district court and order an evidentiary hearing. (I was among those who signed an amicus brief in support of Mr. Davis.) Only a hearing where witnesses are subject to cross-examination will put this case to rest.

Although the Supreme Court issued a stay of execution last fall, the court declined to review the case itself, and its intervention still has not provided an opportunity for Mr. Davis to have a hearing on new evidence. This has become a matter of no small urgency: Georgia could set an execution date at any time.

I am a firm believer in the death penalty, but I am an equally firm believer in the rights and protections guaranteed by the Constitution. To execute Troy Davis without having a court hear the evidence of his innocence would be unconscionable and unconstitutional.
 

Bob Barr served in the House of Representatives from 1995 to 2003 and was the United States attorney for the Northern District of Georgia from 1986 to 1990.

    Death Penalty Disgrace, NYT, 31.5.2009, http://www.nytimes.com/2009/06/01/opinion/01barr.html

Ethics Dilemma for Lawyers When Inmates Seek Death

November 19, 2008
Filed at 2:42 p.m. ET
The New York Times
By THE ASSOCIATED PRESS

LOUISVILLE, Ky. (AP) -- John Delaney faced the toughest moment of his legal career -- his condemned client wanted to drop his appeals and die by injection, an act Delaney opposed and had been trained to try to prevent.

''What do you say?'' asked Delaney, a public defender in northern Kentucky who represented Marco Allen Chapman.

It's a question that has arisen 131 times since states resumed executions in 1977, and each time it leaves defense lawyers struggling against their training to act in the best interest of their clients and justice.

''We're trained as lawyers to be an advocate for someone and fight as hard as we can,'' said Stephen Harris, a University of Baltimore law professor who represented execution volunteer John Thanos in Maryland in 1994. ''Here's someone who says, 'I don't want you,' then, 'I want to die.'''

The first volunteer after the U.S. Supreme Court reinstated the death penalty in 1976 was Gary Mark Gilmore, put to death a year later by a firing squad in Utah for killing a gas station attendant. The 128 men and two women who have followed suit often gave similar reasons -- mainly remorse, a desire for atonement and not wanting to spend their lives in prison -- according to the Death Penalty Information Center, an anti-capital punishment group that compiles statistics on executions.

About 12 percent of the 1,133 inmates executed in the U.S. since 1977 abandoned their appeals and asked for their sentences to be carried out, said Richard Dieter, executive director of the center and a law professor at Catholic University in Washington. Each time, the inmate either fired the defense lawyer or told them to stop filing appeals.

''It amounts to the same thing,'' Dieter said.

Attorneys are required to follow the client's wishes or have themselves removed from the case, said Michael Mello, a Vermont Law School professor who teaches ethics and death penalty law.

''Their hands are pretty well tied,'' Mello said. ''These are the cases that haunt you. This is the most hideous of cases.''

That's how Gus Cahill felt when his client, Keith Eugene Wells, told him he wanted to die. Wells was convicted of beating a couple to death in 1990 in Idaho. He went through the mandatory appeals, then decided to waive any remaining legal options and was lethally injected in 1994.

''I really liked Keith,'' said Cahill, a public defender in Boise. ''You're just thinking, 'Oh, my God, I feel so sorry for being part of what Keith wanted to do.'''

Harris, who opted not to try to talk Thanos into sticking with his appeals, said cases of death penalty volunteers always come with second thoughts, but knowing that a client went willingly to his execution is something attorneys just have to come to grips with.

''I don't know what was in his mind,'' he said. ''You always have regrets about that stuff. But I think I made the right decision.''

Chapman, 36, is to die Friday at the Kentucky State Penitentiary in Eddyville for killing a 7-year-old girl and her 6-year-old brother six years ago in a crack cocaine-fueled attack on a family for whom he'd worked as a handyman.

Delaney, 49, was assigned the case in 2004, and Chapman quickly made it clear that he didn't want a defense and didn't want his life spared. Chapman said at several court hearings and in letters to judges that he wanted to plead guilty and be sentenced to death.

To Delaney, Chapman's reasoning for dropping his appeals made sense on some level.

''Marc wanted to try to make amends to the family,'' Delaney said.

That didn't make it easy to step out of the way of Chapman's execution. Delaney repeatedly tried to get the inmate to at least let a jury determine what sentence to impose. He refused.

Delaney told Chapman to fire him before pleading guilty.

''I wasn't going to help him,'' Delaney said. ''He wasn't in left field for what he wants, though.''

A judge granted Chapman's request to dismiss Delaney and appointed him standby counsel in case Chapman changed his mind.

Delaney tells himself he did everything possible for his reluctant client.

If the execution goes through as scheduled Friday night, he said, he'll be having a drink and tell himself that at least one more time.

    Ethics Dilemma for Lawyers When Inmates Seek Death, NYT, 20.11.2008, http://www.nytimes.com/aponline/us/AP-Suicide-By-Court.html

Execution of Georgia Man in Killing of Officer Is Stayed a Third Time

October 25, 2008
The New York Times
By ROBBIE BROWN

ATLANTA — A federal appeals court on Friday halted the execution of a Georgia inmate convicted in the 1989 killing of a police officer, the third time in 16 months that a stay of execution has been ordered in the case.

The inmate, Troy A. Davis, 40, was scheduled to die by lethal injection on Monday for the murder of Mark A. MacPhail, a Savannah police officer.

In deciding to consider a new hearing for Mr. Davis, the United States Court of Appeals for the 11th Circuit, in Atlanta, asked his lawyers to prove that no reasonable person today would find him guilty.

Since Mr. Davis’s conviction in 1991, seven witnesses have recanted their testimony, including two who said they had felt pressure by the police to testify against Mr. Davis and three who said a different man had admitted to the killing. Prosecutors presented no DNA evidence or murder weapon, although they linked bullet casings found at the scene to a gun they said Mr. Davis had used in an earlier shooting.

The case has bounced around the judicial system, appearing before at least 29 judges in seven types of reviews. The Georgia Supreme Court twice denied Mr. Davis a new hearing, and the United States Supreme Court and the Georgia State Board of Pardons and Paroles have issued stays of execution before rejecting his appeal.

“It’s extraordinary for three stays to be issued in one case,” said Stephen B. Bright, a visiting lecturer at Yale Law School and president of the Southern Center for Human Rights. “Clearly, the case has been very troubling to each of the courts that examined it.”

Mr. Davis’s lawyers have asked the appeals court to decide whether the Eighth Amendment’s ban on cruel and unusual punishment prohibits the execution of the innocent, the same question that the Supreme Court declined to consider.

If the appeals court agrees to hear the case, the stay of execution will continue until a decision is reached. If not, Georgia may proceed with the execution.

The outcome is difficult to predict, Mr. Bright said, because previous decisions in the case have been so close.

The Georgia Supreme Court voted 4 to 3 in March against a new trial, and the United States Supreme Court made the unusual decision to meet in conference twice before declining the case.

Officer MacPhail was shot to death early on Aug. 19, 1989, while moonlighting as a security guard. He was breaking up a fight between two men over a beer in a Burger King parking lot when, prosecutors say, Mr. Davis fired three shots from a pistol into his leg, chest and face. Mr. Davis says he left the scene before the shooting.

Mr. Davis has received an outpouring of publicity and support, including demonstrations against his execution on Thursday in 35 cities around the world.

“It’s another small victory in a big war,” said Mr. Davis’s sister, Martina Correia. But the officer’s mother, Anneliese MacPhail, called the ruling the latest episode in a recurring nightmare. “Why in the world do we have to go through this again?” she asked. “I thought when the Supreme Court in Washington ruled, it would be over.”

    Execution of Georgia Man in Killing of Officer Is Stayed a Third Time, NYT, 25.10.2008, http://www.nytimes.com/2008/10/25/us/25execute.html

FACTBOX: The death penalty in the United States

Wed Apr 16, 2008
10:48am EDT
Reuters

(Reuters) - The U.S. Supreme Court on Wednesday rejected a challenge to the lethal three-drug cocktail used in most U.S. executions during the past 30 years. This cleared the way for a resumption of executions halted since last September pending the court's decision.

Following are some facts and figures about the death penalty in the United States since 1977, when executions resumed following the lifting of a ban on the practice by the U.S. Supreme Court the previous year.

- There have been 1,099 executions in the United States since 1977. The peak year was 1999, when 98 were carried out while no inmates were put to death in 1978 and 1980.

- 42 people were executed in the United States in 2007, the lowest number since 1994 when 31 were put to death.

- 2005, the last year for which data is available, saw 128 death sentences imposed, the lowest number over the past three decades. The peak year was 1996 when 317 were handed down.

- The death penalty is sanctioned by 37 of the 50 states and the U.S. government and the military. Lethal injection is the main method used by all of the death penalty states except for Nebraska which uses the electric chair.

- The standard method involves administering three separate chemicals: sodium pentothal, an anesthetic to make the inmate unconscious; pancuronium bromide, which paralyzes all muscles except the heart; and then potassium chloride, which stops the heart, causing death.

- Texas has been by far the most active death penalty state in the post-1976 era with 405 executions. Virginia is a distant second at 98.

- Amnesty International this week issued a report that ranked the United States fifth in the world in the number of executions in 2007, behind China (470), Iran (317), Saudi Arabia (143), Pakistan (135). These five countries accounted for 88 percent of all known executions.
 

(Sources: Death Penalty Information Center, Texas Department of Criminal Justice, Amnesty International, Reuters)

(Reporting by Ed Stoddard, editing by David Storey)

    FACTBOX: The death penalty in the United States, R, 16.4.2008, http://www.reuters.com/article/topNews/idUSN1634277620080416

Court Rules Nebraska Electric Chair Not Legal

February 8, 2008
Filed at 12:26 p.m. ET
By THE ASSOCIATED PRESS
The New York Times

LINCOLN, Neb. (AP) -- The Nebraska Supreme Court ruled Friday that electrocution is cruel and unusual punishment, outlawing the electric chair in the only state that still used it as its sole means of execution.

In the landmark ruling, the court said the state Legislature may vote to have a death penalty, just not one that offends rights under the state constitution. The evidence shows that electrocution inflicts ''intense pain and agonizing suffering,'' it said.

''Condemned prisoners must not be tortured to death, regardless of their crimes,'' Judge William Connolly wrote in the 6-1 opinion.

''Contrary to the State's argument, there is abundant evidence that prisoners sometimes will retain enough brain functioning to consciously suffer the torture high voltage electric current inflicts on a human body,'' Connolly wrote.

In his dissent, Chief Justice Mike Heavican said he did not think electrocution was cruel and unusual.

The high court made the ruling in the case of Raymond Mata Jr., convicted for the 1999 killing and dismemberment of 3-year-old Adam Gomez of Scottsbluff, the son of his former girlfriend.

Investigators testified that parts of the toddler's body were found at Mata's home in a freezer, a dog bowl and dog-food bag. Human bone fragments also were recovered from the stomach of Mata's dog.

The court stressed that its ruling Friday did not strike down the death penalty -- just electrocution as the method. In fact, Mata's death sentence was affirmed by the high court.

That could leave lawmakers scrambling to approve another means of execution during this legislative session.

Attorney General Jon Bruning was not immediately available to comment about the state's next legal move.

Nebraska Solicitor General J. Kirk Brown had argued for the state that the legal standard a method of execution must meet is to minimize the risk of unnecessary pain, violence and mutilation, not eliminate it. He said electrocution meets that test.

But the high court said electrocution ''has proven itself to be a dinosaur more befitting the laboratory of Baron Frankenstein'' than a state prison.

The use of the electric chair began to decline when Oklahoma adopted lethal injection in 1977, said Richard Dieter, executive director of the Death Penalty Information Center. As more states followed suit, it became more difficult to justify the electric chair, he said.

While Nebraska is the only state with electrocution as its sole method of execution, it is still an option or a backup method in nine other states: Alabama, Arkansas, Florida, Illinois, Kentucky, Oklahoma, South Carolina, Tennessee and Virginia.

All normally use lethal injection but have electrocution as an option if an inmate chooses it or in case state courts rule lethal injection unconstitutional, Dieter said.

------

Associated Press Writer Oskar Garcia in Omaha, Neb., contributed to this report

------

On the Net:

Read the opinion:

http://hosted.ap.org/specials/interactives/--documents/ne--sc--deathpenalty.pdf 

Death Penalty Information Center: http://www.deathpenaltyinfo.org/

    Court Rules Nebraska Electric Chair Not Legal, NYT, 8.2.2008, http://www.nytimes.com/aponline/us/AP-Nebraska-Death-Penalty.html

U.S. Disparity in Executions Grows as Texas Bucks Trend

December 26, 2007
The New York Times
By ADAM LIPTAK

This year’s death penalty bombshells — a de facto national moratorium, a state abolition and the smallest number of executions in more than a decade — have masked what may be the most significant and lasting development. For the first time in the modern history of the death penalty, more than 60 percent of all American executions took place in Texas.

Over the past three decades, the proportion of executions nationwide performed in Texas has held relatively steady, averaging 37 percent. Only once before, in 1986, has the state accounted for even a slight majority of the executions, and that was in a year with 18 executions nationwide.

But enthusiasm for executions outside of Texas has dropped sharply. Of the 42 executions in the last year, 26 were in Texas. The remaining 16 were spread across nine other states, none of which executed more than three people. Many legal experts say the trend will probably continue.

Indeed, said David R. Dow, a law professor at the University of Houston who has represented death-row inmates, the day is not far off when essentially all executions in the United States will take place in Texas.

“The reason that Texas will end up monopolizing executions,” he said, “is because every other state will eliminate it de jure, as New Jersey did, or de facto, as other states have.”

Charles A. Rosenthal Jr., the district attorney of Harris County, Tex., which includes Houston and has accounted for 100 executions since 1976, said the Texas capital justice system was working properly. The pace of executions in Texas, he said, “has to do with how many people are in the pipeline when certain rulings come down.”

The rate at which Texas sentences people to death is not especially high given its murder rate. But once a death sentence is imposed there, said Richard C. Dieter, the executive director of the Death Penalty Information Center, prosecutors, state and federal courts, the pardon board and the governor are united in moving the process along. “There’s almost an aggressiveness about carrying out executions,” said Mr. Dieter, whose organization opposes capital punishment.

Outside of Texas, even supporters of the death penalty say they detect a change in public attitudes about executions in light of the time and expense of capital litigation, the possibility of wrongful convictions and the remote chance that someone sent to death row will actually be executed.

“Any sane prosecutor who is involved in capital litigation will really be ambivalent about it,” said Joshua Marquis, the district attorney in Clatsop County, Ore., and a vice president of the National District Attorneys Association. He said the families of murder victims suffered needless anguish during what could be decades of litigation and multiple retrials.

“We’re seeing fewer executions,” Mr. Marquis added. “We’re seeing fewer people sentenced to death. People really do question capital punishment. The whole idea of exoneration has really penetrated popular culture.”

As a consequence, Mr. Dieter said, “we’re simply not regularly using the death penalty as a country.”

Over the last three years, the number of executions in Texas has been relatively constant, averaging 23 per year, but the state’s share of the number of total executions nationwide has steadily increased as the national totals have dropped, from 32 percent in 2005 to 45 percent in 2006 to 62 percent in 2007.

The death penalty developments that have dominated the news in recent months are unlikely to have anything like the enduring consequences of Texas’ vigorous commitment to capital punishment.

A Supreme Court case concerns how to assess the constitutionality of lethal injection protocols. While it is possible that states may have to revise the ways they execute people, executions will almost certainly resume soon after the court’s decision, which is expected by June.

Similarly, New Jersey’s abolition of the death penalty last week and Gov. Jon Corzine’s decision to empty death row of its eight prisoners is almost entirely symbolic. New Jersey has not executed anyone since 1963.

And while the total number of executions in 2007 was low, it would have been similar to those in recent years but for the moratorium, if extrapolated to a full year.

There do seem to be slight stirrings suggesting that other states might follow New Jersey. Two state legislative bodies — the House in New Mexico and the Senate in Montana — passed bills to abolish capital punishment, and in Nebraska, the unicameral legislature came within one vote of doing so.

Texas has followed the rest of the country in one respect: the number of death sentences there has dropped sharply.

In the 10 years ending in 2004, Texas condemned an average of 34 prisoners each year — about 15 percent of the national total. In the last three years, as the number of death sentences nationwide dropped significantly, from almost 300 in 1998 to about 110 in 2007, the number in Texas has dropped along with it, to 13 — or 12 percent.

Indeed, according to a 2004 study by three professors of law and statistics at Cornell published in The Journal of Empirical Legal Studies, Texas prosecutors and juries were no more apt to seek and impose death sentences than those in the rest of the country.

“Texas’ reputation as a death-prone state should rest on its many murders and on its willingness to execute death-sentenced inmates,” the authors of the study, Theodore Eisenberg, John H. Blume and Martin T. Wells, wrote. “It should not rest on the false belief that Texas has a high rate of sentencing convicted murderers to death.”

There is reason to think that the number of death sentences in the state will fall farther, given the introduction of life without the possibility of parole as a sentencing option in capital cases in Texas in 2005. While a substantial majority of the public supports the death penalty, that support drops significantly when life without parole is included as an alternative.

Once an inmate is sent to death row, however, distinctive features of the Texas justice system kick in.

“Execution dates here, uniquely, are set by individual district attorneys,” Professor Dow said. “In no other state would the fact that a district attorney strongly supports the death penalty immediately translate into more executions.”

Texas courts, moreover, speed the process along, said Jordan M. Steiker, a law professor at the University of Texas who has represented death-row inmates.

“It’s not coincidental that the debate over lethal injections had traction in other jurisdictions but not in Texas,” Professor Steiker said. “The courts in Texas have generally not been very solicitous of constitutional claims.”

Indeed, the Supreme Court has repeatedly rebuked the state and the federal courts that hear appeals in Texas capital cases, often in exasperated language suggesting that those courts are actively evading Supreme Court rulings.

The last execution before the Supreme Court imposed a de facto moratorium happened in Texas, and in emblematic fashion. The presiding judge on the state’s highest court for criminal matters, Judge Sharon Keller, closed the courthouse at its regular time of 5 p.m. and turned back an attempt to file appeal papers a few minutes later, according to a complaint in a wrongful-death suit filed in federal court last month.

The inmate, Michael Richard, was executed that evening.

Judge Keller, in a motion to dismiss the case filed this month, acknowledged that she alone had the authority to keep the court’s clerk’s office open but said that Mr. Richard’s lawyers could have tried to file their papers directly with another judge on the court.

    U.S. Disparity in Executions Grows as Texas Bucks Trend, NYT, 26.12.2007, http://www.nytimes.com/2007/12/26/us/26death.html?hp

Texas Ruling Signals Halt to Executions Indefinitely

October 3, 2007
The New York Times
By RALPH BLUMENTHAL

HOUSTON, Oct. 2 — Signaling an indefinite halt to executions in Texas, the state’s highest criminal appeals court late Tuesday stayed the lethal injection of a 28-year-old Honduran man who was scheduled to be put to death Wednesday.

The reprieve by the Texas Court of Criminal Appeals was granted a week after the United States Supreme Court agreed to consider whether a form of lethal injection constituted cruel and unusual punishment barred under the Eighth Amendment. On Thursday, the Supreme Court stepped in to halt a planned execution in Texas at the last minute, and though many legal experts interpreted that as a signal for all states to wait for a final ruling on lethal injection before any further executions, Texas officials said they planned to move ahead with more.

As a result, Tuesday’s ruling by the Texas court was seen as a sign that judges in the nation’s leading death penalty state were taking guidance from the Supreme Court and putting off imminent executions.

The Texas court order gave state authorities up to 30 days to explain in legal papers why the execution of the inmate, Heliberto Chi, should proceed. With responses then certain from defense lawyers, the effect of the order was to put off the execution for months, lawyers said.

Mr. Chi was convicted of killing the manager of a men’s store in Arlington in 2001.

Other executions, including four more scheduled in the next five months, were also likely to be stayed, said David R. Dow of the Texas Defender Service, a nonprofit law clinic that worked on Mr. Chi’s appeal.

“Until the Court of Criminal Appeals addresses the questions raised in this case there will be no more executions in Texas,” predicted Mr. Dow, a law professor at the University of Houston.

Acting less than a week after it rejected another inmate’s appeal 5 to 4, the appeals court justices provided no breakdown of the vote and did not give any reasoning for their decision. But they directed the state’s director of criminal justice, Nathaniel Quarterman, not to execute Mr. Chi and gave Mr. Quarterman and Tim Curry, the district attorney of Tarrant County, where the crime had been committed, up to 30 days to respond to claims by Mr. Chi’s lawyers that the formulation and administration of chemicals used for lethal injections did not quickly and painlessly kill but paralyzed the condemned inmates while they painfully suffocated.

Earlier Tuesday, the Texas Board of Pardons and Paroles voted 4 to 3 against recommending a stay for Mr. Chi. A request for a 30-day reprieve was also pending with Gov. Rick Perry.

Had the appeals court not halted the execution, Mr. Chi’s lawyers would have taken the case to the United States Supreme Court, which last Thursday stayed the execution for another Texas inmate, Carlton Turner Jr.

Bryan Stevenson, director of the Equal Justice Initiative in Montgomery, Ala., and a law professor at New York University, said the Supreme Court’s ruling was a sign that while it was reviewing the legality of lethal injection in a Kentucky case, “it was at least unseemly for states to be carrying out executions.”

Deborah Denno, a professor at Fordham Law School, called the latest stay in Texas significant. “I do think Texas is reaching a turning point,” Ms. Denno said. “It’s not unusual throughout the country, but it is unusual in Texas. And not uncommonly when people are talking about the death penalty, there’s Texas and everywhere else, because Texas seems to be in its own death penalty world.”

But Diane Clements, president of Justice For All, a victims’ advocacy group in Texas, said the Supreme Court and the Texas appeals court gave no reasons for their rulings, “so we’re left here with no direction.”

The delays spelled more suffering for victims’ families, Ms. Clements said. “I’m sure family of that stayed-execution victim is on a roller coaster ride,” she said. “If there’s anything certain about the death penalty for families, it’s that it is very uncertain.”

    Texas Ruling Signals Halt to Executions Indefinitely, NYT, 3.10.2007, http://www.nytimes.com/2007/10/03/us/03texas.html

Governor Commutes Sentence in Texas

August 31, 2007
The New York Times
By RALPH BLUMENTHAL

HOUSTON, Aug. 30 — Hours before his scheduled execution as a disputed accomplice in a 1996 murder, Kenneth Foster won a rare commutation to life in prison on Thursday after Gov. Rick Perry followed the recommendation of the Texas Board of Pardons and Paroles and granted a death row reprieve.

The case had raised international protests because Mr. Foster, 30, was not the gunman but the driver of a getaway car in a San Antonio robbery spree that ended in murder. He was convicted under a Texas law that makes co-conspirators liable in certain cases of homicide.

“It makes me feel wonderful,” said Mr. Foster’s father, Kenneth Foster Sr., who had been visiting his son at the death house in Huntsville with other family members when word of the board’s clemency recommendation came.

“He was very excited; he jumped for joy,” the elder Mr. Foster said.

Since taking office in 2000, Mr. Perry has granted death row commutations recommended by the pardons board only twice before, and has once overruled the panel’s recommendation, the governor’s office said.

Mr. Foster’s lawyer, Keith S. Hampton, who had run out of options except for a final — and sixth — appeal to the United States Supreme Court, said, “I’m very relieved, for Kenneth and all his supporters.” Mr. Hampton said Mr. Foster could conceivably be released from prison some day, perhaps after serving 30 more years. He has served 10.

The pardons board, appointed by the governor, met Wednesday and announced Thursday morning that it had voted 6 to 1 to recommend commutation. Shortly afterward, Mr. Perry, a Republican, accepted the recommendation.

“I believe the right and just decision is to commute Foster’s sentence from the death penalty to life imprisonment,” the governor said in a statement.

Mr. Perry raised doubts about the law that allowed Mr. Foster and the triggerman to be tried together and urged the Legislature to re-examine the issue.

Three years ago the pardons board, with one vacancy, voted 5 to 1 to recommend commuting the death sentence of another convicted murderer, Kelsey Patterson, who had been given a diagnosis of schizophrenia. Mr. Perry turned down the recommendation, and Mr. Patterson was executed by lethal injection in May 2004.

The two earlier death row commutations by Mr. Perry at the pardons board’s request came this year and in 2004. In 2005, after the United States Supreme Court halted the execution of juveniles, he commuted the death sentences of 28 17-year-olds. But 163 other executions have gone forward under Mr. Perry.

Mr. Foster was arrested with three accomplices after a night’s armed robbery spree through San Antonio that ended with one of his companions gunning down a 25-year-old law student, Michael LaHood Jr. The jury convicted Mr. Foster and sentenced him to die, along with the gunman, Mauriceo Brown, finding that he should have anticipated that the group’s crimes could lead to murder.

Mr. Brown was executed last year. The two other accomplices are serving life terms.

Sue Gunawardena-Vaughn, director of the Program to Abolish the Death Penalty of Amnesty International USA, hailed the reprieve.

“Given the obvious — that it would have been virtually impossible to predict the murder of Michael LaHood — Foster was sentenced to death under the broadest and most appalling interpretation of the law of parties,” Ms. Gunawardena-Vaughn said.

Norma LaHood, the murder victim’s mother, said she took the commutation as divine will.

“I’m filled with peace,” Mrs. LaHood said by telephone from San Antonio. “I will mourn my son till I die, but I’m not forced anymore to relive his death.”

    Governor Commutes Sentence in Texas, NYT, 31.8.2007, http://www.nytimes.com/2007/08/31/us/31execute.html

7.15pm

Texas governor spares man from execution

Thursday August 30, 2007
Guardian Unlimited
Haroon Siddique and agencies


A man in the US was today saved from the death penalty just hours before his scheduled execution.

The Texas governor, Rick Perry, accepted a parole board recommendation and commuted the sentence of Kenneth Foster, who had been due to die via lethal injection this evening.

Foster, 30, was the getaway driver in a 1996 murder but his sentence had been criticised as he had nothing to do with the shots being fired.

He was convicted of murder and sentenced to death under the Texas law of parties, which makes non-shooters equally accountable for a crime.

Another condemned man was executed under the same statute earlier this year.

"I believe the right and just decision is to commute Foster's sentence from the death penalty to life imprisonment," Mr Perry said in a statement.

In a highly unusual move, the Texas parole board had voted six to one, earlier today, to recommend that Mr Perry commuted the sentence, although the governor was under no obligation to take their advice.

Foster said he was aware his friends were committing crimes, as he drove them around in a rental car while they robbed at least four people.

"It was wrong," he said. "I don't want to downplay that. I was wrong for that. I was too much of a follower. I'm straight up about that."

Their robbery spree, while they were all high on alcohol and marijuana, turned deadly when one of Foster's passengers, Mauriceo Brown, shot and killed a victim.

Brown and Foster were tried together and convicted of capital murder. Foster was set to be executed tonight, 13 months after 31-year-old Brown.

Mr Perry said: "I am concerned about Texas law that allowed capital murder defendants to be tried simultaneously and it is an issue I think the legislature should examine."

Foster's lawyers argued that statements from the other two friends, both now serving life sentences, provided new evidence that supported his claim that he did not know Brown was going to shoot.

Last week, Texas reached a milestone when a man who murdered a convenience store worker became the 400th person executed by the state since it resumed capital punishment in 1982.

Foster would have been the 24th prisoner put to death in Texas this year had he been executed.

    Texas governor spares man from execution, G, 30.8.2007, http://www.guardian.co.uk/usa/story/0,,2159468,00.html

TEXAS PENAL CODE > LAW OF PARTIES

PENAL CODE
CHAPTER 7. CRIMINAL RESPONSIBILITY FOR CONDUCT OF ANOTHER

SUBCHAPTER A. COMPLICITY

Sec. 7.01. PARTIES TO OFFENSES.

(a) A person is criminally responsible as a party to an offense if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible, or by both.
(b) Each party to an offense may be charged with commission of the offense.
(c) All traditional distinctions between accomplices and principals are abolished by this section, and each party to an offense may be charged and convicted without alleging that he acted as a principal or accomplice.
Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.
Sec. 7.02. CRIMINAL RESPONSIBILITY FOR CONDUCT OF ANOTHER. (a) A person is criminally responsible for an offense committed by the conduct of another if:
(1) acting with the kind of culpability required for the offense, he causes or aids an innocent or nonresponsible person to engage in conduct prohibited by the definition of the offense;
(2) acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense; or
(3) having a legal duty to prevent commission of the offense and acting with intent to promote or assist its commission, he fails to make a reasonable effort to prevent commission of the offense.
(b) If, in the attempt to carry out a conspiracy to commit one felony, another felony is committed by one of the conspirators, all conspirators are guilty of the felony actually committed, though having no intent to commit it, if the offense was committed in furtherance of the unlawful purpose and was one that should have been anticipated as a result of the carrying out of the conspiracy.
Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.
Sec. 7.03. DEFENSES EXCLUDED. In a prosecution in which an actor's criminal responsibility is based on the conduct of another, the actor may be convicted on proof of commission of the offense and that he was a party to its commission, and it is no defense:
(1) that the actor belongs to a class of persons that by definition of the offense is legally incapable of committing the offense in an individual capacity; or
(2) that the person for whose conduct the actor is criminally responsible has been acquitted, has not been prosecuted or convicted, has been convicted of a different offense or of a different type or class of offense, or is immune from prosecution.
Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

SUBCHAPTER B. CORPORATIONS AND ASSOCIATIONS

Sec. 7.21. DEFINITIONS. In this subchapter:
(1) "Agent" means a director, officer, employee, or other person authorized to act in behalf of a corporation or association.
(2) "High managerial agent" means:
(A) a partner in a partnership;
(B) an officer of a corporation or association;
(C) an agent of a corporation or association who has duties of such responsibility that his conduct reasonably may be assumed to represent the policy of the corporation or association.
Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.
Sec. 7.22. CRIMINAL RESPONSIBILITY OF CORPORATION OR ASSOCIATION. (a) If conduct constituting an offense is performed by an agent acting in behalf of a corporation or association and within the scope of his office or employment, the corporation or association is criminally responsible for an offense defined:
(1) in this code where corporations and associations are made subject thereto;
(2) by law other than this code in which a legislative purpose to impose criminal responsibility on corporations or associations plainly appears; or
(3) by law other than this code for which strict liability is imposed, unless a legislative purpose not to impose criminal responsibility on corporations or associations plainly appears.
(b) A corporation or association is criminally responsible for a felony offense only if its commission was authorized, requested, commanded, performed, or recklessly tolerated by:
(1) a majority of the governing board acting in behalf of the corporation or association; or
(2) a high managerial agent acting in behalf of the corporation or association and within the scope of his office or employment.
Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1975, 64th Leg., p. 913, ch. 342, Sec. 4, eff. Sept. 1, 1975; Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.
Sec. 7.23. CRIMINAL RESPONSIBILITY OF PERSON FOR CONDUCT IN BEHALF OF CORPORATION OR ASSOCIATION. (a) An individual is criminally responsible for conduct that he performs in the name of or in behalf of a corporation or association to the same extent as if the conduct were performed in his own name or behalf.
(b) An agent having primary responsibility for the discharge of a duty to act imposed by law on a corporation or association is criminally responsible for omission to discharge the duty to the same extent as if the duty were imposed by law directly on him.
(c) If an individual is convicted of conduct constituting an offense performed in the name of or on behalf of a corporation or association, he is subject to the sentence authorized by law for an individual convicted of the offense.
Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.
Sec. 7.24. DEFENSE TO CRIMINAL RESPONSIBILITY OF CORPORATION OR ASSOCIATION. It is an affirmative defense to prosecution of a corporation or association under Section 7.22(a)(1) or (a)(2) that the high managerial agent having supervisory responsibility over the subject matter of the offense employed due diligence to prevent its commission.
Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1975, 64th Leg., p. 913, ch. 342, Sec. 5, eff. Sept. 1, 1975; Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

    TEXAS PENAL CODE > LAW OF PARTIES, copie 1.9.2007, http://tlo2.tlc.state.tx.us/statutes/docs/PE/content/word/pe.002.00.000007.00.doc

From The Guardian archive > June 20 1953 > Rosenbergs executed despite pleas

June 20 1953
The Guardian

Julius and Ethel Rosenberg were executed early this morning at Sing Sing Prison for conspiring to pass atomic secrets to Russia in World War II.

Only a few minutes before, President Eisenhower had rejected a last plea written in her cell by Ethel Rosenberg. Mr Emanuel Bloch, the couple's lawyer, took the note to the White House where guards turned him away.

Neither of the two said anything before they died. The news of their execution was announced at 1.43 a.m.

Julius Rosenberg, aged 35, was the first to die. They were executed just before the setting sun heralded the Jewish Sabbath. Prison officials had advanced the execution time to spare religious feelings.

Mrs Rosenberg turned just before she was placed in the electric chair, drew Mrs Evans, the prison matron towards her, and they kissed. The matron was visibly affected. She quickly turned and left. In the corridor outside Rabbi Irving Koslowe could be heard intoning the 23rd Psalm.

The couple were the first civilians in American history to be executed for espionage. The last hope of reprieve for the Rosenbergs vanished early this afternoon when President Eisenhower rejected a final appeal for clemency. The President's decision was announced in the following statement: "I am convinced that the Rosenbergs have received the benefits of every safeguard which American justice can provide. Their original trial and the long series of appeals constitute the fullest measure of justice and due process of law. No Judge has ever expressed any doubt that they committed most serious acts of espionage.

"I am not unmindful of the fact that this case has aroused grave concern both here and abroad in the minds of serious people. I can only say that, by immeasurably increasing the chances of atomic war, the Rosenbergs may have condemned to death tens of mil lions of innocent people all over the world. I will not intervene."

[Outside Winston Churchill's country home] a deputation scribbled a note addressed "Dear P.M.," asking the Prime Minister to appeal direct "to President Eisenhower over the Transatlantic telephone immediately". They received a typewritten note saying: "It is not within my duty or my power to intervene in this matter. (Signed) Winston Churchill."

At one o'clock this morning in Manchester a crowd of two hundred stood quietly outside the offices of the "Manchester Guardian" waiting for news of the Rosenberg executions. A telegram sent earlier to the Queen had asked her to use her influence towards securing a reprieve.

    From The Guardian archive > June 20 1953 > Rosenbergs executed despite pleas, G, republished 20.6.2007, p. 34, http://digital.guardian.co.uk/guardian/2007/06/20/pages/ber34.shtml

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